& Friends on Technology Policy

Larry Lessig and Yochai Benkler of Harvard, Jack Balkin of Yale, Barbara van Schewick of Stanford, and other legal scholars filed a brief in the net neutrality litigation yesterday that explains how the First Amendment applies to net neutrality rules. In short, the cable and phone companies do not have a First Amendment right to block websites or create fast lanes–and similar rules throughout telecom history did not trigger First Amendment scrutiny.

You can read that brief in combination with the brief by WordPress.com, Reddit, Squarespace, Twitter, Yelp, and Medium about the free speech interests on online speech platforms and a brief by Fordham law professor Zephyr Teachout, Penn State professor Sascha Meinrath, and thousands of Internet users, about users’ speech interests in order to get a rounded view of the free speech interests at play.

Of course, telecom and administrative law questions are paramount in this case. Tim Wu of Columbia wrote an excellent brief on telecom legal aspects and Mike Burstein of New York Law School wrote a no less excellent brief on the administrative law aspects. Those are worth reading, as are many other briefs filed yesterday.

3.9 million people have commented, and President Obama’s is a first among equals.

I earlier wrote a piece in Slate about Obama’s lack of comment, and then wrote that Obama clearly seemed to be in favor of strong net neutrality on Title II. Turns out he has now made himself crystal clear.

I published an article today in Slate explaining why the FCC’s most recent apparent direction on net neutrality will fail in court and hurt the open Internet.

I’m not alone. So far, there has been a lot of public opposition to the FCC’s latest trial balloon. The proposals are based partly on an idea put forward earlier in the year, so there has been a lot of commentary on it.

Tech companies have already come out.

Vimeo: FCC trial balloon is just a new version of the “flawed” rules from May only “this time around the FCC has taken the additional step of overcomplicating the matter.”

“Tumblr….and other online startups like Vimeo and Etsy are strongly opposed to the hybrid proposal.”

Kickstarter: “Since this rumored proposal doesn’t embrace full reclassification and allows paid prioritization deals, it’s a non-starter. We — along with millions of Americans — strongly believe that the Internet is a public utility and should be treated as one.”

City of Los Angeles: Such a proposal “may mean that smaller and start-up edge providers are subject to significant discrimination.”

Digital rights groups, consumer groups, activists are opposed.

AARP:“proposals to leave the commercial relationship between ISPs and their subscribers as information services is not reasonable” and such a proposal only “proves the need for blanket reclassification.”

“Fight for the Future delivered more than 75,000 signatures to President Obama calling for him to publicly support Title II reclassification and replace Tom Wheeler if he won’t.”

Free Press: “Chairman Wheeler can’t wave a wand, change the law, and pretend to break the Internet in two. But these schemes suggest just that: dividing the Internet to protect corporations sending information, but not the people receiving it.”

ACLU: “Going with pure Title II, Chairman Wheeler will be pleasing the millions of people who called for reclassification. This hybrid proposal will please no one.”

New America’s Open Technology Institute: “the Federal Communications Commission (FCC) may be on the brink of not only undermining hope for strong, enforceable and legally sound network neutrality rules, but may also be taking steps that would ultimately disrupt the very principles that have governed the way the Internet has always worked.”

Engine Advocacy: “The legal approach that the FCC is considering is novel, untested, and conceptually complicated. The plan carries significant legal risk and could end up getting thrown out in court.”

The carriers and their vendors don’t like it either. So the FCC’s apparent plan of appeasing the carriers–with a rule that’ll get struck down in court instead of one resting on straight-forward Title II–doesn’t seem to be working.

Comcast:

such a proposal would have a “fatal flaw by asserting that the ‘fee’ for this hypothesized edge-provider-facing service is the one paid by the ISP’s ‘local subscribers.’”

that “with the exception of a handful of interconnection agreements…broadband providers do not ‘offer’ anything ‘directly’ to edge providers….Indeed, that is precisely what many proponents of reclassification seem to believe Title II would prevent.”

Such a “decision may have much broader effects than direct reclassification” and “could have sweeping and unpredictable consequences, as it may well lead to the imposition of…Title II regulation on large swaths of the Internet ecosystem.”

USTelecom called the approach “byzantine” and said it “defies legal precedent and common sense.” The proposal “would be an invitation to protracted litigation,” and “would only guarantee continued uncertainty and debate well into the next administration.”

Verizon states such a proposal:

“wouldmandate that edge providers pay a fee to broadband providers”, “face significant legal challenge and would be unlikely to withstand appeal”

would “require a radical unbundling of Internet access service into its component parts—with disastrous consequences for consumers forced to navigate the resulting confusion”

is “an unqualified disaster for the Internet community” and “would create a dangerous slippery slope that could implicate players throughout the Internet ecosystem.”

CTIA states:

that “the FCC should not be drawing artificial lines within the Internet that neither engineers nor end users recognize.”

that “the arbitrary lines….draw[n] between service to an edge provider and service to the end user do not exist in the real world.”

NCTA says:

such proposals “conflict with technical realities, and their preferred policy outcome (a ban on payments by edge providers for paid prioritization) is at odds with the statutory requirement that a telecommunications service be offered for a fee.”

that “even if the Commission were able to overcome the legal and factual barriers and create a contrived partial reclassification scheme, it could not simultaneously advance the proponents’ goal of precluding the imposition of fees on edge providers. Not only does the law not allow for the prohibition of such fees with respect to telecommunications services, but that is a required definitional element.”

that sender side proposals are “based on a gross misreading of Verizon decision”, “any attempt to accord differential regulatory treatment to “request” and “delivery” transmissions would make little sense as a practical matter”, “The nature of packet-switched communications the mechanism on which Internet Protocol communications are based, would render such distinctions utterly unworkable”, and “are riddled with fundamental factual and legal misconceptions and should be rejected”

Akamai said a sender side proposal “will do far more harm than good to the goal of an Open Internet.”

Cox Communications found that “such classification would be contrary to the text of Title II.”

Mozilla and Tim Wu, which initially proposed very different variants of the idea, believe straight-forward Title II is better.

Mozilla: “choosing between the two, we prefer reclassification as the simplest, cleanest path forward”

Wu: “I tend to think Title II is the simplest way of doing this. There could be other ways to combine regulatory authority. The Commission has a way to get too clever sometimes and trying to find a magic bullet approach … and when it gets to the courts it gets struck down. It’s important to be wary of getting too clever in order to please every constituency in Washington. When it comes to the courts, Title I, or Section 706, has always been a weaker authority.”

Whether the platforms should distinguish between sharing the photos for news value or prurient value.

If you talk to lawyers at the web companies, they’ll be quick to say there are 10 other hard questions they have to answer every day; this is just the tip of the iceberg. I just published an article in the Harvard Law Review about free expression on Internet platforms like Twitter and I’m sometimes asked my thoughts when Twitter bans photos or videos (LA Times, Fox Business, etc.) Since Twitter is suspending accounts for sharing Jennifer Lawrence’s leaked stolen photos, I might get questions, but the questions (above) will be more interesting than the answers I’d give.

And there are also security engineering and personal security-practices exams in here too, but I’m a lawyer and will leave that to technologists.

Looks like Title II, the only authority capable of supporting real net neutrality rules after a court decision in January, is now politically feasible. For months, opponents of Title II suggested that Congress would destroy the FCC if it chose the Title II path. One skeptic of strong net neutrality rules wrote: “Republicans and pro-telco Democrats in Congress will grind the FCC to a standstill, starve its budget, and do everything in their power to inflict permanent harm on the agency.” Even the FCC Chairman apparently mentioned politics as a reason against Title II.

Since then, over a dozen Senators and dozens of Congressmen (and dozens of companies, investors, and trade associations) have come out strongly for Title II.

And the Majority Leader, Senator Harry Reid, has sent a letter saying that if the FCC does the right thing and stands up a rule under Title II, the Majority Leader would lead the fight to defend the rule.

That’s a far cry from where we were months ago, when one could plausibly claim that the FCC would successfully be defunded and crippled for adopting real net neutrality. In fact, the political arguments were, effectively, that of course the House (controlled by Republicans) would make the FCC Chairman’s life difficult no matter what. Unless the Senate has the Chairman’s back, he couldn’t do anything. That means the Chairman needed to know if Senate Democrats would support him if he pursued Title II and this letter answers that question. Yes.

Kudos to Senator Reid. This is a game changer. It allows us to argue on the merits, rather than have the FCC hide behind their political fears.

By Todd Shields
July 29 (Bloomberg) — Senate Majority Leader Harry Reid said in a letter he would support “any Open Internet rules” passed by U.S. regulators, language welcomed by supporters of strict rules opposed by telephone and cable companies.
The pledge gives the Federal Communications Commission political cover to regulate Web services like a utility, rather than relying on less robust rules that allow for so-called fast lanes on the Internet, said David Segal, executive director of Demand Progress, a Takoma Park, Maryland-based policy group that received the letter dated yesterday.
Reid’s support is “a reason for the FCC to move ahead with the strongest rule possible,” Segal said in an interview. Other groups that are urging the FCC to approve rules requiring Internet service providers to treat Web content equally also received the letter from Reid, Segal said.

Senate Majority Leader Harry Reid has given the Federal Communications Commission a much-needed political boost as the agency decides whether to move toward a more robust Open Internet policy favored by many net neutrality advocates.

…

“First, Reid’s letter undercuts the FCC’s argument that Senate Democrats won’t support a Title II order,” Segal said. “Second, it undercuts the FCC’s argument that there won’t be much of a political fight over a 706 order. Reid makes clear that he expects a political fight either way, and with his backing, now the FCC can decide this issue based on the merits, not on the politics.”

Segal makes a good point. The simple fact is that many Republican lawmakers oppose any kind of net neutrality rules whatsoever, whether issued under the authority of Section 706 or Title II. …

“Here’s why this letter matters,” Aaron told Motherboard. “There’s no longer any question that Tom Wheeler has the political support to do the right thing. And the right thing is reclassifying broadband access providers as common carriers under Title II of the Communications Act. Senator Reid makes clear that when Wheeler reclassifies that the Senate leadership will have his back.”

Reid’s letter did not urge the FCC to use its authority under Title II. But he acknowledged that liberal groups are pressing the FCC on the issue and said he would support “any Open Internet rules” the FCC enacts.

David Segal, the executive director of the advocacy group Demand Progress, said the letter shows Senate Democrats will defend the FCC if it uses the Title II option and that Republicans would likely fight the rules no matter what authority the FCC uses.